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American Legal History
University of South Carolina School of Law
Pratt, Walter F. "Jack"

American Legal History
Fall 2013
Chapter 1
Law in the Morning of America:
The Beginnings of American Law to 1760
1). Earlier English Settlers
            English inhabitants of mainland colonies viewed themselves as English people    who happened to be living outside of Great Britain but within the Empire.
            A). English Heritage and the Law: Colonial law was a blend of inherited      English legal culture with new rules that were necessary for the new environment.
                        a. Religious Toleration: an adaptation to the unique structure of the                            new world. Religious dissenters (New England/Pennsylvania)                                              rejected all church hierarchy and in other colonies that were                                                religiously heterogeneous, canon law seemed impractical and                                           irrelevant.
                        b. Magna Carta (1215): The Great Charter, An agreement (Barons                               actually forced the King to sign the agreement after they surrounded                            the King at Runnymede) between King John I and land barons dealing                               with property, inheritance, and feudal obligations, and significantly                                   provisions regarding fair administration or law, fundamental justice,                          and basic rights. The agreement eventually served to protect all free                         men. Did not have the intent to apply to the Barons but only to hold                           the King
                                    -Influence on U.S. law:
                                                -Article III, Section 2 requiring that Congress fix the                                                        places where courts would meet.
                                                -Chapter 18- Grand jury
                                                -Chapter 20 and 21: Fines be in proportion to the                                                           degree of the offense thus leading to the ban on                                                                         excessive fines found in the 8th amendment.
                                                -Chapter 35- similar to Article I, Section 8 that                                                                 authorizes Congress to fix the Standard of Weights and                                                             Measures.
                                                -Chapter 39- source of modern procedural and                                                               substantive due process
                                                -KEY CONCEPTS: government cannot take private                                                           property without compensation, justice cannot be                                                          bought or sold, and maintaining  a legal system                                                                  based upon the law of the land.
                        c. Extensions of Magna Carta: Act of 1346 “Every man may be free to                          sue for and defend his right in our courts and elsewhere according to
                        the law. Law of 1354- introduced phrase due process of law.
·         DALE’S LAWS:Sir Thomas Dale was sent to Virginia in 1611 as a Deputy Governor with the task of imposing legal order. Dale and members of the Virginia Company instituted what came to be remembered as Dale’s Laws- a harsh code that was later revoked in 1624 but would have lasting impact on the development of American laws.
                        -88 provisions divided into laws “Divine and Morall” and laws                                      “Martiall”.
                        -Harsh punishments such as  boring a hole in the tounge of an                                                 offender, cutting off ears, and capital punishment (A third conviction                          for failing to attend church could be punished with death)
·         THE MAYFLOWER COMPACT (1620): Pilgrims settling in Massachussettes landed hundreds of miles from where they had intended. In order to get legal authority to settle where they had landed, the Mayflower Compact was created as a contract or agreement between all of the settlers and is considered one of America’s first constitutions. Unlike Magna Carta as it is a social contract and a covenant between the settlers.
·         A MODEL OF CHRISTIAN CHARITY (1629)-JOHN WINTHROP: CITY UPON A HILL, John Winthrop gave a sermon on the ship Arbella in 1629 creating a type of social covenant that would serve as a model for others. This unity seemed to dissolve in Massachusetts due to a lack of powerful government and its conflict with individual liberty.
·         ROGER WILLIAMS- BLOODY TENENT OF PERSECUTION FOR CAUSE OF CONSCIENCE (1644): Williams came to Mass. And soon began to question various aspects of society, aligning his views with the separatists. IN 1635 Williams was banished from the colony and he escaped to ultimately formed the colony of Rhode Island. This document began to develop the idea of religious toleration      – Argued that you should buy land from Indians, Separation of church/state – government is civil, not religious, Full religious liberty and no state church (different from most places),Adoption Statute – we will adopt the laws of England as applicable here.
·         ROGER WILLIAMS TO THE TOWN OF PROVIDENCE (1655): Williams denies he favors absolute religious liberty and opposes exempting people from their civic obligations on the basis of religious claims. People should be able to worship as they please.
·         THE LAWS AND LIBERTIES OF MASSACHUETTS (1648): Still looking to God’s Rules, based on the 10 commandments.
·         THE RHODE ISLAND PATENT (1643): Patent issued by Parliament, not the King:
1-      settlers themselves constituted the corporation and were endowed with full powers of self-government
2-      The principle of majoritarianism was explicitly recognized
3-      The patent was issued on the application of settlers who were then free to set up any form of government that suited them.
                        Rhode Island became an autonomous quasi-commonwealth and                                  allowed full religious liberty for all people, had no established church,                          and had an expansive right of suffrage that was not tied to religious                                belief.
·         MARYLAND TOLERATION ACT (1649): First act allowing religious freedom in the new world, though it only tolerated Trinitarian Christians and provided for punishment including death and confiscation or forfeiture of all of the lands and goods of an individual who denied the divinity of Christ.
            -1660’s King Charles II began to grant colonial charters: William Penn            (Quakers and haven for religious dissidents), Carolinas (wealth), etc. The             Proprietors of the charters essentially created their own documents for governing the colonies.
·         THE FUNDAMENTAL CONSTITUTIONS OF CAROLINA – 1669 JOHN LOCKE- desire to replicate English society through creating a social hierarchy based on land holdings and hereditary nobility. Provided religious liberty for all but protected the right to own slaves.
·         FIRST FRAME OF GOVERNMENT 1682- WILLIAM PENN: Proposed a balance of power in government and introduced the idea of popular rule. Paternalistic constitution
·         THE NEW YORK CHARTER OF LIBERTYES 1683- Never became law as it was vetoed by the King, however, it called for guarantees of liberty including for petit and grand juries, primitive homestead exceptions, security of dower, religious toleration, and the prelude to the third amendment.
            -Establishment that King had to abide by Parliament’s rules. King’s James fled           after facing great resistance and Parliament offered the throne to Mary, thus       securing the Protestant Reformation.
·         Case of the Seven Bishops (1688): Case over constitutional questions regarding the right to petition and to free speech in regards to the monarchy’s use of seditious libel prosecutions to suppress criticism of the government. Seven Bishops petitioned the King to be relieved of the King’s  Declaration of Indulgence. The King charged the Bishops with seditious libel and ultimately the Bishops were acquitted and they won great popular support. However the case did not resolve whether subjects have a right to petition the King or Parliament.
·         THE ENGLISH BILL OF RIGHTS 1689- 1st document of the glorious revolution and set forth rules to limit the political power of the monarch and direct rejection of royal absolutism. Had significant influence on American Bill of Rights.
·         SECOND TREATIS OF CIVIL GOVERNMENT 1690 – JOHN LOCKE: synopsis of constitutional principles vindicated in the Glorious Revolution and liberal constitutional principles.        (a)The power of the government comes from the       governed giving up some of their rights, and thus, the    government is naturally limited to that which benefits          the citizens.
                        (b)Consent – the government can only exist with the                              consent of the governed. 
            Early American law was essentially a conglomerate of unequal             parts of and inaccurately remembered aspects of common law,          local law, Mosaic law, and Roman law and further adapted to fit    the unique needs of the new world.
                        -The common law was eventually received in all                                      American jurisdiction as many early colony charters                                    included provisions stating that laws enacted by the                          colonists must conform to the legal culture of England.
·         WILLIAM BLACKSTONE ON RECEPTION 1765- Summation of the English theory of reception:                            (a)Conquered Countries – keep                                     their laws until the King says                          otherwise
                                                                           (i)The US was deemed to be                                                                           in this category.
                                                                     (b)Discovered Countries – the                                                                             English common law is                                                                                          automatically adopted there
·         GIDDINGS v. BROWN – 1657: Case involving a challenge to a compelled assessment levied to support the maintenance of a town’s minister. described natural law as being superior law to positive law, which was created by reason or revelation. 
            -Notions of morality greatly influenced early colonial law.
·         A

nies’ Declaration and Resolves of the First             Continental Congress in 1774 and later the Declaration of Independence in   1776.
·         UNLIMITED SUBMISSION AND NON-RESISTANCE TO THE HIGHER POWERS 1750: sermon delivered by Minister Jonathan Mayhew stating that Common tyrants and public oppressors are not entitled to obedience from their subjects.
·         WILLIAM BLACKSTONE ON THE IMPERIAL CONSTITUTION, 1765: lecture on the reception of common law and parliamentary power and made clear that the American view was not to be tolerated.
·         THE DECLARATORY ACT, 1766: After Parliament repealed the Stamp Act, it issued the Declaratory Act as a means to reassert power over the colonies. The Act simply stated that the colonies were subordinate to Britain and were to be compelled to follow Parliament’s rule. The Americans were only angered by the act and denied that Parliament had the power to tax them.
·         THE DECLARATION AND RESOLVES OF THE CONTINENTAL CONGRESS, 1774:  A result of the First Continental Congress (organized in response to The Boston Tea Party and the new laws that followed such as the Coercive or Intolerable Acts), and conceded that Parliament had the power to regulate foreign affairs of the colonies but limited other powers and set forth America’s constitutional position. Britain refused to recognize it.
·         COMMON SENSE 1776, THOMAS PAINE: In April 1775, the war began and in May, colonists gathered for the Second Continental Congress and in July they sent the king a petition seeking reconciliation which was ignored. Thomas Payne wrote common sense as a way to separate finally Americans from their loyalties to Britain.
·         THE DECLARATION OF INDEPENDENCE 1776: First section is a statement of liberal political theory with heavy reliance on Locke, the second section is a statement of the monarchy’s wrongdoings.
                                                            -universal equality, fundamental right to liberty                                                               (Ironic considering they owned slaves)
            -The American Revolution created an environment where republican             principles could be applied to actual government, first evidenced by             constitutions drafted by state legislatures that included various public and            private law reforms and varying degrees of religious disestablishment.
·         THE VIRGINIA DECLARATION OF RIGHTS 1776: Drafted by George Mason and essentially created a slave holders republic by stating that the freedom and equality guaranteed in the declaration only applied to those when they entered into a state of society.
·         THE PEOPLE THE BEST GOVERNORS 1776: A pamphlet by an anonymous author advocating various reforms and ideas to enhance the role of people in their own government. Reduce control of government, prevent qualifications for representation from being based on money, and give every government equal weight in Congress.
                                                                        -Pennsylvania came closest to this ideal                                                                            by creating through its constitution a                                                                                unicameral legislature, adding male                                                                                   taxpayer suffrage, annual elections,                                                                           requirements that the doors of the                                                                                                 assembly always be open and that its                                                                                deliberations and votes be printed                                                                                                 weekly, septennial reapportionment,                                                                                 mandatory rotation in office, a collegial                                                                             executive that could act only as a body,                                                                              etc.. HOWEVER, this constitution was                                                                                     widely unpopular and it was annulled in                                                                           1790.